Saxe v. State College Area School District/Concurrence Rendell

RENDELL, Circuit Judge, concurring:

I write separately only to note my strong disagreement with the notion, espoused by the District Court and discussed at length in Part II.B of the majority opinion, that the judicial analysis of permissible restrictions on speech in a given setting should be affected -- let alone dictated -- by legislative enactments intended to proscribe activity that could be classified as "harassment." Our attempt at reasoning through this postulate should demonstrate its futility, given the numerous variables that impact on any determination regarding the limits of permissible speech and the rigorous analysis that we must follow in every First Amendment case -- the analysis that our opinion does in fact follow in reaching the result in this case.

Perhaps the only way, or time, that such legislation could be a guide would be if its provisions were identical to the policy at issue, or if in a case involving an as-applied challenge to a policy, the legislative provisions addressed every aspect of the particular factual setting at issue. Even then, I submit that it would be the reasoning by a court upholding its constitutionality, rather than the legislation itself, that would provide the necessary guidance.

I view the use of harassment legislation as an especially inappropriate barometer here because this case is not a harassment case. Rather, it is framed by appellants as a First Amendment speech case. Moreover, it is a school speech case. While reliance on provisions of harassment laws or policies might be an easy way to resolve difficult cases such as this one, therein lies the rub--there are no easy ways in the complex area of First Amendment jurisprudence.